FAQs about advocates
This page got too long and is now divided into two: if what you're looking for isn't here, go to the second page.
There is no logical order to these FAQs, many of which interrelate. You may find the question answered better, or differently, or more officially, on the new Faculty website.
NEWSFLASH! On 28 October 2006, the Faculty of Advocates adopted new rules as to direct access to advocates, without using a Scottish solicitor, with immediate effect. These substantially widen the right to use an advocate without having to go through aScottish solicitor.
Who are advocates and what do they do?
The Scottish legal profession is divided into advocates and solicitors. Advocates (also known as counsel) are self-employed legal consultants who specialise in the preparation and presentation of cases and in giving legal advice. It is important to note that they are not directly instructed by lay clients but by the lay client's professional adviser. Advocates also act as mediators, in arbitrations, and as expert witnesses on Scottish law. Barristers are the broad equivalent in England and Wales, but the analogy is deceptive.
The professional body is the Faculty of Advocates. There are about 470 advocates in practice in Scotland. About one-fifth are QCs (Queen's Counsel, silks, or senior counsel), who are typically appointed on perceived merit after not less than about thirteen years in practice (the appointment procedure is currently in a state of flux or perhaps paralysis, but see 2003 applicants guide). Every advocate is entirely independent; although for administrative purposes counsel are organised in groups known as 'stables', advocates are not in any sense in partnership with each other.
There is a fuller description in the Careers Brochure published by the Faculty.
The other 95% of lawyers in Scotland are solicitors; they are the first point of contact for most lay clients and, in the vast majority of cases, indeed, the only one. Their professional body is the Law Society of Scotland.
Are all practising advocates insured against professional negligence claims?
Yes; this is compulsory. Fortunately, our premiums remain very low by any comparative standard!
Are all advocates on the Data Protection Register?
No, though any who use a computer ought to be; as at the end of June 2003, it appeared only six practising advocates had notified under the Act as data controllers. Since then, the number may have more than doubled. If in doubt, ask.
How is the profession governed and regulated?
The Faculty is a self-governing profession, with democratically elected office bearers and general meetings at least annually. Elections follow Condorcet criteria. Regulation of both Scottish legal professions is, under the Scotland Act (see schedule 5 head C3), a matter for the Scottish Parliament (see Justice 1 Committee 2002 report) and Justice Department. This paper describes the overall regulatory framework.
There is a little-publicised Justice Department Working Group on issues of legal professional regulation in Scotland, whose Minutes and (some) working papers are published. From these it seems that the Office of Fair Trading is keen to empire-build in this sector, suggesting (for example) that legal professional privilege is anti-competitive and so a matter for the OFT, because it, um, might discriminate against people who get their legal advice from non-lawyers. For Faculty views, see also its evidence to the Clementi Review in England. There is also an ongoing Scottish Consumer Council Civil Justice Review which touches on this.
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Where do advocates work when not in court?
We don't have offices, or chambers on the English model. Almost all advocates work out of the Advocates Library in Parliament House (photo gallery) and from home. In the library, we hot-desk. It is by far the best law library in Great Britain; the staff are excellent; and it has wireless networking for our laptops. Consultations are usually held just down the High Street, at 142 High Street (map), but may be held elsewhere by arrangement. Most advocates still live within half an hour's walk of Parliament House.
I have no wish to come to Scotland but I want to consult with an advocate; how?
Strange! Have a look at the links in the Edinburgh section later in this site and see if you can be persuaded. Anyway, we have telephone conferencing and video conferencing systems. And most advocates are happy to consult outside Scotland, particularly in winter. There is no rule, such as I understand the English and Northern Irish bars to have, against consulting at the office of the instructing solicitor or agent.
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How do I find out about individual advocates?
This can be difficult, particularly if you are not a Scots lawyer. Scotland being a small jurisdiction, most Scottish solicitors find out by word of mouth; not much use to others.
- The Faculty of Advocates website (at last revamped, 9 March 2005) has a list of all practising members, but otherwise contains little useful information on individual advocates; the 'particular interests' boxes on some pages are not always reliable, and it has not been the practice for individual advocates to list their reported cases; such information is only available for the hundred-odd advocates featured in the Legal500 and a few advocates who are also members of the English Bar.
- The Faculty site also provides a facility to search by 'areas of particular interest': this is incomplete and dangerously inaccurate, and should not be relied on.
- The Faculty also publishes a Directory semi-annually in paper ; this contains fuller contact details, but otherwise merely replicates the information on its website as to practising members: instructing professionals may obtain a copy from the Faculty by email.
- The Legal500 now includes some material on Scottish counsel in its 2004 edition, with personal entries for over a hundred advocates (including in many cases lists of reported cases), but much of its editorial commentary is uninformed and/or outdated. Its layout is difficult to follow; letters of the alphabet refer to stables, not counsel.
- Chambers (whose claim to be a 'guide to the UK legal profession' is simply English imperialism) is quite useless.
- The Scottish Courts Service website has a keyword search of court decisions since 1998, allowing a search for counsel's surname (mixed up with the same name elsewhere) in court decisions since 1998.
The best solution is probably to ask one or more of the clerks; they have full details and any of them will be happy to give background on any member of their stable: see this question, next page.
Do any other practising advocates have individual websites?
Now Sandy Wylie QC has gone on the bench as Lord Kinclaven, I know only of Archie MacSporran; Andrew Hajducki QC; Scott Blair, who is the first advocate to publish a blog; and Steven Walker. Any others I am told of, I will note here.
Why can I never get an advocate on the phone?
The phones issued to advocates are direct-dial mobiles under a contract with O2. They have to be switched off in court, and the rules of the Library forbid their use there. If you want to leave a message, you may find it easier to go through the stable. There is absolutely no point in going through the switchboard at 0131 226 5071 unless you have to: this simply means that we don't get told who is phoning and can't return the call- like anyone else, we're more likely to answer if we know who's calling- and the switchboard won't take messages. Direct dial numbers are in the Faculty directory and some are even on the Faculty website.
I want to e-mail an advocate; do they all have advocates.org.uk addresses, or how do I find their e-mail address?
The vast majority of advocates do have an e-mail address, but there is no common format. Only about one in five (but all bar one in the Murray stable) has an address in the format email@example.com. There are hopes that this common format will be universally introduced at some time. Many addresses are on the Faculty of Advocates website here; unfortunately not all. If you e-mail the appropriate clerk, they will forward to counsel.
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Who can instruct an advocate for work?
NEWSFLASH! On 28 October 2006, the Faculty of Advocates adopted new rules as to direct access to advocates, without using a Scottish solicitor, with immediate effect. These substantially widen the right to use an advocate without having to go through a Scottish solicitor.We do not permit direct access by members of the public; all instructions must come from a qualified professional.
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Is it necessary to instruct an advocate for Scottish civil litigation?
Practically speaking, yes if the action is in the Court of Session, as there are restricted rights of audience; otherwise this is optional, as solicitors have a right of audience in the local Sheriff Court. If you are contemplating Scottish civil litigation, you probably have a choice between Court of Session and Sheriff Court (but some classes of case can only be brought in one or the other).
There is the choice in the Court of Session of instructing a solicitor-advocate (a solicitor with a right of audience there) but in reality few solicitor-advocates appear more than occasionally, and very few are instructed other than by their own firm. They are not subject to the cab-rank rule and do not normally accept civil legal aid work. A research study on the impact of solicitor-advocates concluded: "6.25 It seems, however, that solicitor advocates in large firms may not always opt for the best client solution. For example, Kerner's study (Kerner, 2000) has highlighted that civil solicitor advocates, unlike criminal ones, will never appoint a solicitor advocate from outside their firm. This suggests that either external solicitor advocates are not up to the task or that these firms are reluctant to pass work on to their competitors even if they are the best people for the job."
Natural persons have the right to represent themselves in Scottish courts; corporate entities cannot do so.
I know some English [Dutch] [Australian] barristers and I usually instruct them. Can I instruct them for cases in Scotland?
This is rarely a sensible question. It has to be emphasised that the Scottish legal system is entirely independent and viewed from England is a foreign system. One may ask, as the English Law Society put it in a report on multi-jurisdictional practices (pdf), '… if a greengrocer or taxi driver can provide legal advice for reward in England and Wales, why cannot a foreign lawyer?'' Anyone, if their professional indemnity insurance allows this, and they regard themselves as competent, can advise on Scottish legal issues; but watch out for the opinion that tells how the case would be decided in England!
Nevertheless there are solicitors who, for whatever reason, prefer to instruct only their fellow nationals if possible. The Commission for Racial Equality was traditionally a classic example; and the Disability Rights Commission still has a poor reputation for this (although they now have, with the Equal Opportunities Commission, a panel of advocates).
English barristers have the same rights of audience in Scotland as any 'greengrocer or taxi driver'; thus they can appear in employment tribunals, or before immigration adjudicators, but not on appeal to the Court of Session.
Dutch, or other EU or EEA but non-UK, lawyers may have rights of audience in the Scottish courts under the European Communities (Lawyer's Practice) (Scotland) Regulations 2000 (which implemented Council Directive 98/5/EC; these have now been amended by SSI 2004/302), regulation 11, if accompanied by a Scottish lawyer; part 17 of the Guide to Professional Conduct at question 9 on the next page is not up to date on this matter. These rights have limitations. See also European Communities (Services of Lawyers) Order 1978 (S.I. 1978/1910) as amended most recently by the European Communities (Services of Lawyers) Amendment (Scotland) Order 2004.
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Second page of Advocates in Scotland